Ostensibly exploring the practice of law before the internet. Heck, before good highways for that matter.

Thursday, October 2, 2014

The Jurisdictional Agony of the D. C. Circuit. Wolves

I'm really sick of the Federal District of Columbia judicial circuit.

What brings this comment about is the decision by Judge Amy Berman Jackson that the plan worked on seemingly forever by the U.S. Fish & Wildlife Service and the State of Wyoming allowing the state to assume control over the management of wolves in Wyoming failed as the reliance upon Wyoming's regulatory scheme was "arbitrary and capricious."

Now, to be fair to Judge Jackson, what is being missed in this decision is that the holding of the Court was very limited. The court upheld nearly everything that the U. S. Fish & Wildlife Service did, and really the only thing that the Court found fault with was that, in its words:

.

The record reflects that the FWS specifically relied on the representations in the Addendum as the basis for its conclusion that Wyoming would do what the agency has determined it must do: manage above the 10/100 minimum. The Court finds that under those circumstances the reliance on mere assurances was inappropriate and it rendered the FWS decision arbitrary and capricious.

The rest of the opinion upholds everything that the Fish & Wildlife Service did. The judge's opinion, while I feel it is in error, isn't exactly hostile or shocking. The impact, however, of the opinion is enormous. A process that has taken years to develop, which allows the State of Wyoming to manage the wolf population, and which allows wolves to be taken as predators outside of their recovery area, and managed through hunting in the recovery era, has been upset for at least the second time. This now means that in the entire state stockmen are once again at the mercy of wolves, and cannot do anything really if wolves prey on their livestock. And it means the employees of the State who are working in this area are now surplus to their agencies (last time the new head of this project, for the state, who had been the head for the FWS, resigned his state position and took a position with the Federal government again), and the FWS must not involve itself and its personnel once again.

That's the impact, but if the judge's ruling isn't patently in error, what is my complaint?

Well, what my compliant is that with the D. C. Circuit, the states, and their residents, have to put up with being judged by a jurist with no connection to the state at all, in a remote locality, where distance and conditions will never be favorable to a state, and where the jurists inherent knowledge is unlikely to exist on such topics. Federal courts were set up in individual states for a reason, and there's a reason that the system provides the judges are to be drawn from the states, except, of course as to the District of Columbia.

The D. C. Circuit was afforded with jurisdiction on suits against states because it was feared that plaintiff's would get "hometowned" if they were always required to file suit against a state, in the state. That may have reflected the conditions in the court system when the law was created, but it no longer does. Originally, any Federal Court was likely to be far from Washington D. C. That's still true, but it isn't true that Federal judges sit in remote vacuums in their states. Being appointed to the Federal bench is a difficult and arduous process, and it isn't the case, and hasn't been for decades, that the Federal judges, who sit for life and who cannot be removed by the states, are likely to be excessively partisan to their states. The entire Senate sits in review of these judges and its not unusual at all for the Senate to hold up an appointment it doesn't like or to just keep it from occurring. Wyoming has experienced that on one recent occasion, holding up an appointment for so long that ultimately the appointed lawyer withdrew his name and had to restart his process, basically because one party didn't like some things he had supported as a legislator. On the D. C. Circuit, however, it isn't the case that any state process exist to even get a name to the Senate. The states have no impact.

Its not an accident that groups and organizations that want to go after states invariably file suit in the District of Columbia. Every time they do, they are likely to draw a judge who has no connection, and therefore no life experience based knowledge, on the state they're suing. Take this judge for example.

This particularly judge graduated from Harvard Law in 1979, making her part of the group of Ivy League Federal jurists that have become so prominent in recent decades. She worked as a Federal law clear and in the Justice Department up until entering private practice in 1986, which she stayed with until appointed to the bench by President Obama in 2010. She probably was a really good lawyer, and she does have a fair amount of private practice experience, but not experience here, where her decision will have an impact on everyone.

And because of this background, Harvard Law, law clerk, U.S. Attorney, she's a member of a club that's insulated from the lives of most people most places, and even lawyers west of the Mississippi. Lawyers here, including the judges, and including the Federal judges, are not Harvard law graduates and most have had pretty conventional state careers before their appointments. Frankly, I'd rather have judges like that every time rather than those Harvard pros with rarefied careers. I'm already of the opinion that generally Ivy League lawyers are a different species of lawyer to start with, and less connected with the real world than the rest of us, and I don't think that's a good thing for a judge. In recent decades the U.S. Supreme Court has tended to be drawn from this class, which isn't a good thing in my view. This isn't to say that the Justices are all bad guys, but when people get frustrated as the opinions seem to be so rarefied, and the debate so ethereal, well they should consider the ultimate source of the legal training and experience involved in creating them. In some former instances some of the lawyers lived some pretty colorful lives, they'd been solders (one had even been a Confederate soldier), politicians (one had been a President), and even entertaining jurist (one carried a handgun frequently out of the concern a jealous husband would catch up with him). Now, they're less colorful and more remote.

They also aren't likely to be familiar with the hard efforts of the Wyoming Game and Fish Department in any fashion, or the U.S. Fish and Wildlife Service.

To add to this, D. C. does a lot of whining about not having the full rights that states do, often failing to realize that it is, after all, a Federal reservation and it isn't supposed to be a state. Here too, however, that shows how obsolete this system is. It's original purpose largely now gone, there's really no reason that the city can't just be absorbed by a neighboring state for voting purpose and the district completely abolished. It wouldn't be missed at all, and all of the legal causes and controversies that presently exist within it could just as easily be filed in the native circuit if they were local, or in the proper states if they were not. Want to sue Wyoming? Sue it in Wyoming. Want to sue the Federal government? Sue it where you live. Or sue where the controversy actually exists.

Year and years ago, while in law school I worked on an article with Professor Robert Keiter about Wolf Recovery. While doing that I interviewed the Wyoming's sitting Agriculture secretary, who was not only opposed to reintroduction, but thought it would be stopped. At that time, I was in favor, but with a caveat. It wasn't wolves I was worried about, as my thought that the reintroduction of a native species helped secure the ongoing preservation of wildlands, but it was the people that came with the wolves that I worried about. That is, their backers who didn't live here and who would make it impossible to live with the wolves. I was proved right on that, and some of those people are the Federal jurist an antiquated court structure provides jurisdiction to, far from the impact of their decisions.

In the U.S., it would be a sign of a pack of interest groups loose in the woods.

1 comment:

One of the problems about a story like this is that it immediately provokes extremist to take really unwise positions.

In this morning's paper we find that an independent candidate for Governor in the state would have simply ignored the Federal Court's order. While I've criticized the system here, the judge is the judge, and the Supremacy Clause makes her decision the law of the land. There's no room for ignoring it, and this year's hunt must therefore be cancelled.

Moreover, somebody counseling the state to ignore the ruling is really counseling private individuals to bear the risk. Should Wyoming ignore the ruling and the hunt go forward, when the U.S. Attorney gets around to issuing arrest warrants, it would be private individuals who would bear the risk. It would be one thing for a Governor to ignore the Federal Government, as foolhardy as that would be, in some important issue, but to counsel individuals to run the risk of committing a Federal crime is quite another.

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Lex Anteinternet?

This blog has been around since 2009. In the very first post, we asked the question: "What the heck is this blog about?"

Our answer to the question was: "The intent of this blog is to try to explore and learn a few things about the practice of law prior to the current era. That is, prior to the internet, prior to easy roads, and the like. How did it work, how regional was it, how did lawyers perceive their roles, and how were they perceived?"

We also noted: "Part of the reason for this, quite frankly, has something to do with minor research for a very slow moving book."

All of this is still true, but the focus of the blog has changed somewhat. It now focuses on the era from 1890 to 1920 in general, rather than on the law and lawyers specifically, although that may be far from obvious. It's also become the location where we comment on anything we feel moved to comment on.

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On This Day In Wyoming History

In addition to being the frequent blogger here, I'm also the author of On This Day In Wyoming History, a book cataloging the daily history of Wyoming. More on that book can be discovered by following the link.

I'm also the author of a number of articles that have been published by various journals, including The Wyoming Lawyer and Rural Heritage. Topics of my published articles range from legal and agricultural topics to historical topics.